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DTIC
ELECTE
LEGAL ASPECTS OF SEP 2 11992~
C
SAFETY IN CONSTRUCTION
BY
LISA 1 FREELAND
A REPORT PRESENTED TO THE GRADUATE COMMITTEE
OF TLE DEPARTMENT OF CIVIL ENGINEERING IN
PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE DEGREE OF MASTER OF ENGINEERING
UNIVERSITY OF FLORIDA
SUMMER 1992
' 29e 2 -2 44 8 2
_ _ _ _ _ _
92i 49.02 1b5
Acknowldgment
I would like to sincerely thank Mr. Gene Taylor, Director of the Safety
Department, Navy Public Works Center (NPWC), Pensacola, Florida. He
generously provided encouragement, many hours of helpful discussion, and access
to the extensive safety library maintained at the NPWC. The Safety Department
staff members were aso helpful and supportive in every way.
A genuine interest in spreading the word about safety was evident in word
and action.
_A.eta torn For
Distr 4 e islov
Av~tliqlity Cores
I is 1 ,S a io ...
Forward
Safety is a general subject area that has never particularly interested me.
Attendance at safety meetings was considered boring and time consuming. An
impromptu appearance of the Safety manager at my office door was met with
silent/private aroans. I will not incriminate myself further with any of the other
stupid thoughts I have had on the subject. Suffice it to say that I chose the topic of
"Legal Aspects of Safety in Construction" in recognition of my own dangerous
attitudes and a desire to change them.
My own life experience has included relatively few accidents of any kind
and those that I have experienced were relatively minor and inconsequential in
nature... until recently. During the time frame in which I was performing the
research for this report, I also had a very serious car accident which but for the
grace of God could have resulted in serious injury or death to my two young
children and me.
A permanent impression waq made on my mind as I surveyed the total
wreckage of our car, personal belongings strewn for 200 feet. and frightened crying
children. There was perfect irony in realizing that thousands of pages of safety
reference books and research notes wcrc among the debris.
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This accident got my attention. It was Preventable. There was a caus...
and the accident was the effect. Experience is the best teacher but clearly there are
some exerinces ,such as this one, that do not lend themselves to firsthand
knowledge. The risk is too geat and the experience is of no value if one does not
live to benefit from it.
Safety Engineering Education, and Enforcement are intended to prevent
accidents. I hope the current high level of interest that I have in safety will never be
replaced by the old lackadaisical attitudes.
oI
TABLE OF CONTENTS
Chapter One -Introduction. ........................................................................ 1
1.1 Background and History ..................................................................... 1
1.2 Topic Overview ................................................................................. 5
Chapter Two - The Occupational Safety and Health Act ........................ 8
2.1 Administration ............................................................................... 8
2.1.1 The Occupational Safety and Health Administration ............ 8
2.1.2 Occupational Safety and Health Review Commission ......9
2.1.3 National Institute for Occupational Safety and Health ......1 0
2.1.4 Bureau of Labor Statistics ................................................. 10
2.2 Applicability ................................................................................... 10
2.2.1 Modified Requirements ................................................... 11
2.2.2 Exclusions ...................................................................... 11
2.3 Employer and Employee Duties and Rights ...................................... 12
2.3.1 Specific Employer Duties ................................................. 13
2.3.2 Employee Duties .............................................................. 18
2.3.3 Employer Rights .............................................................. 18
2.3.4 Employee Rights .............................................................. 21
2.4 Occupational Safety and Health Standards ...................................... 23
2.4.1 Variances from the Standards ........................................... 25
Chapter Three - OSHACT Enforcement ............................................... 27
3.1 Compliance Inspections .....................................2 7
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3.2 Violations, Citations, and Penalties ...................................................... 29
3.2.1 Violations ......................................................................... 30
3.2.2 Citations ........................................................................... 32
3.2.3 Penalties ........................................................................... 33
Chapter Four - OSHA Standards for Construction .................................. 36
4.1 Overview ........................................................................................ 36
4.2 Training Requirements .................................................................. 40
4.3 Construction Compliance Inspections ............................................. 41
Chapter Five - Legal Concepts .............................................................. 43
5.1 OSHA Actions Affirmed. ................................................................ 43
5.2 OSHA Actions Vacated ................................................................ 46
Chapter Six - Conclusion ....................................................................... 49
Appendix A - Accident Investigation Form ............................................. 52
Appendix B - Chart of Scheduled Charges (Injuries) ............................... 54
Appendix C - OSHA Form 101 .............................................................. 55
Appendix D - OSHA Poster .................................................................. 57
Appendix E - List of Employee Rights ................................................... 58
Appendix F - Standard Setting Organizations ......................................... 59
Appendix G - Variance Application Information .................................... 60
Appendix H - OSHA Inspection Subjects ............................................... 61
Appendix I - Construction Safety Rules ................................................. 62
Referen es ............................................................................................ 63
Supplementary Bibliography .................................................................. 64
V
CHAPTER I
INTRODUCTION
1.1 Backrud and Istory
Individual and societal attitudes concerning saety are continually evolving.
The book, Work is Dangerous to Your Health, describes safety as "a vast problem.
Among the 80 million workers in the United States, more than 14,000 deaths on
the job are recorded annually, and about 2.2 million disabling injuries. Those are
probably minimal figures, for every worker knows the devices by which industry
pads its safety records (5-ii)." These figures reflet pre-1973 statistics. The
National Safety Council still repors that there are more than 11,000 work related
deaths per year and about 2 million injuries. Changes in society and technology are
reflected in the evolution of safety legislation and case law over the past century.
The history of occupational safety and health was greatly affected by the
industrial revolution. "Chnges in production methods with their concomitant need
for masses of workers brought with them hazards never before encountered...
DIeads and injuries were accepted as being part of "industrial progress' (8-3)."
Three doctrincs of common law which were prevalent at the time were
* the Fellow Servant rule which held that the employer was not liable for
injury to an employee that resulted from negligence of a fellow employee,
I
* ContributoryN egligence which supported the employer as not liable if
the employee was injured due to his own ngligence, and
* Assumption ofRisk which protected the employer from liability because
the employee took the job with full knowledge of the risks and hazards involved.
It was the early 1900's before any significant legislative action took place
concerning safety. Many federal and state worke's compensation laws were passed
during the first two decades of the 20th century. This was one way to enlighten
management to accept responsibility for prevention of accidents. This new line of
thinking held the employer responsible for a share of the economic loss suffered by
the employee who was involved in an accident The National Council for Industrial
Safety (now the National Safety Council) was established in 1913.
The mission of the National Safety Council is to educate
and influence society to adopt safety and health policies, practices,
and procedures that prevent and mitigate human and economic
losses arising from accidental causes and adverse occupational
and environmental exposures. (Adopted by the Board of
Directors, 1983).
A prnmary objective which took shape over time was the development of
safety standards. During the 1920's the American Standards Association came into
being (under a different name) and has been an important partner in standard
setting for the safety movement. Standards provide an important tool for the courts
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to ascertains uch things as state-of-the-ar safety tectnology and accepted standards
of the industry.
The Walsh-Healy Act of 1936 directed some attention to occupational
safety and health. The importance of safety in the work place was further
highlighted by labor shortages experienced duuing World War II. Increased
emphasis on safety was well established and did not diminish with the end of the
war. In 1948 Admiral Ben Moreel wrote
Although safe and healthful working conditions can be
justified on a cold dollars-and-cents basis, I prefer to justify them
on the basic principle that it is the right thing to do. In discussing
safety in ndustrial operations, I have often heard that the cost of
adequate health and safety measures would be prohibitive and that
"we can't afford if. My answer to that is quite simple and quite
direct. It is this: If we can't afford safety, we can't afford to be in
business. (8-6)
This noble sentiment was not shared by all and change has not come easily. "No
essential rights now enjoyed by working men and women were simply bestowed by
government; rather, they were won through struggle (5-13)." Lobbying and
concerted action was and is still required to make the work place safe.
During the 1960's Congress enacted numerous pieces of safety legislation
However, each law was limited in scope to specific employers or industries. Each
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law may have been the product of some specific lobbying effort but cumulatively
the laws did not cover the majority of employers or employees.
The Occupational Safety and Health Act (OSHAct) was signed into law on
Dec. 29, 1970 and took effect on April 28, 1971. This was landmark lcgislation
for the United States because it created national safety policy for the first time. It
was both comprehensive in scope and applicability. While other related federal
legislation may remain on the books, the OSHAct is now the major law mandating
construction safety. The OSHAct was not an instant solution to all safety
problems. Subsequent amendments have added teeth to the enforcement
provisions in addition to continually improving specific safety requirements.
The OSHAct has been and probably always will be the subject of a great
deal of controversy. There are vocal advocates of the Act and its objectives and
there are certainly strong opponents. The two sides of the issue battle continuously
over attempts to water down or strengthen the legislation. No one is likely to voice
the opinion that workers should not be protected from unsafe conditions. They are
much more likely to speak of free enterprise, cost-effectiveness, unrealistic
demands, government interference or ineptitude, or similar arguements. OSHA
was the target of much crticism during its first decade in existence primarily for
ineffective enforcement and pro-industry positions concerning safety standards.
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